PROTECTING THE HUNGRY BY LEGAL MEASURES IN LATIN AMERICA
Conclusions and recommendations from the analysis of existing food security, food sovereignty and right to food laws in the region.
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Laws with different nature: “programmatic” laws and “institutional” laws
The purpose of FNS laws is to establish an adequate institutional framework and to regulate a series of actions, programmes and political commitments. This can be manifested to a greater or lesser degree by prioritising the institutional architecture that will allow for better coordination between actors, mandates and programmes (institutional laws), or by placing the emphasis on specific aspects of what type of interventions to implement, who should implement them, with which kind of approach and under which strategies (programmatic laws).“Institutional” laws only establish the architecture necessary for fighting against hunger at national and local level by defining institutions, mandates, hierarchies and goals. “Programmatic” laws, however, aim to use the legal framework to regulate many factors that usually fall within the sphere of political decision-making or technical decisions. Those decisions, however debatable may be, should not be regulated by the law. This type of law may limit the space for a technical and political decision-making, which usually means they become inefficient or they are often ignored.
Laws targeting different constituencies: Food Security “rural” laws and Food Safety “urban” laws
The very nature of a FNS law will very much depend on the balance between urban consumers and rural producers and their respective voting powers. The degree of urbanisation and the weight of the rural world in the national imaginarium are pivotal in determining the bias of the FNS law. One can distinguish between those which tend to focus more on urban food problems (safety, balanced diets, food culture, diet-related illnesses, obesity, healthy habits and urban supply) and those that focus mainly on rural food security (availability and access, malnutrition treatment and the like). As usual, any given law reflects a combination of dominant economic paradigms, urban concentration, collective perception, constituency voting powers and legislators’ priorities.
The negotiating process as important as the content of the law
The process of collective construction of the legal text and the political negotiation among different parties, between the government and the parliament and between the state powers and the civil society stakeholders is almost as important as the legal provisions contained in the text. The process and the outcomes are key to the future success while implementing the law. Furthermore, the broader the political participation and the space given to civil society, the more likely the law will be effective and respected by the different parties, either at the opposition, or while in the government. If the law is only elaborated with unilateral technical propositions, the final product will surely become a controversial source of tensions, difficult to materialise and easy to neglect.
Keeping coordination separated from enforcement
Some laws, and several drafts as well, propose new institutions be created, both centrally and locally. Those institutions are given ample coordination and execution mandates, at least in theory. Conversely, the FNS laws barely mention the current ministries and their mandates, they neither adequately incorporate the institutions that already exist at local level and nor they do take into account the existing power dynamics. The law simply mentions what they should do from now on. That, in most cases, does not work. Institutional mandates must be consistent with those that already exist and the proposed architecture shall be implementable. On the other hand, it makes a lot of sense the multi-sectorial approach for food and nutrition security to have a main institution that coordinates the roles of different ministries and departments. This approach implies the creation of a new institution closely attached to the Presidential Cabinet, which does not usually exist in many countries. Regarding this coordinating body and the FNS system as a whole, differentiating between the coordination-planning-monitoring roles and the operational-enforcement ones is deemed to be essential. Otherwise, the super-ministry of food security will never work. Sector-based ministries should continue to operate as they did, this time under the coordination and monitoring of the newly-created body.
Progresses at national level obscure delays at local level
The right to food is progressing considerably at national level in many countries. Nevertheless, this national development is not paralleled in its implementation and awareness at local or municipal level. Reports, events, initiatives, trainings are often undertaken in the capital city, mostly addressed to developmental workers, governmental officers and the media, none of them being hungry. And if the right to food does not reach the hungry who usually live in isolated rural areas, what is the point?
Vagueness in terms of mechanisms for justiciability
While the recognition of this right is making great strides, the acceptance of its demandability or justiciability does not seem to progress likewise(Vivero, 2011). The fear of the justiciability of the right to food still prevails. Among the laws already passed, just a few (Ecuador, Mexico and Nicaragua) mention the demandability of this right. However vague these mentions may be, they are a considerable breakthrough compared to initial FNS laws, such as Argentina, Guatemala, Brasil or Venezuela, where there is no mention at all. Nevertheless, when specifying the demandability mechanisms, Ecuador, México and Nicaragua tend to be imprecise or exclusively administrative. Only in the Paraguay draft law, one can find a detail rationale for justiciability, obligations and penalties.
Civil society is anyhow empowered by the progress of social rights
With regard to the right to food, this becomes very clear as civil society has played, and still plays, an important role in the drafting and political negotiation of FNS laws. Some of them were initially drafted and submitted to parliaments by CSOs, and all of them have gone through a process of consultations where CSOs have been able to contribute. In addition to that, the Latin American civil society, lead by the Vía Campesina international peasant movement, has achieved a strong intellectual legitimisation through its ability to articulate a coherent proposal, namely food sovereignty, that can be considered a true alternative to the dominant neoliberal fuel-based food production model.
Food sovereignty has moved from the farmers’ barricades to the governmental establishment.
Food sovereignty has been around for a short time (presented into society in 1996) but has come a long way in terms of its consolidation as a real alternative to the industrialised food production model (major monocropped lanholdings, cash crops for export, high-input fuel-based production, long distances, reduced variability in food diversity). Food sovereignty is no longer a taboo for politicians and is being gradually appropriated by the establishment in many countries. The term has become part of the Constitution in Ecuador and Bolivia and it is also mentioned in the national FSN legal frameworks in Nicaragua, Venezuela and Guatemala. It is also included in the draft laws of Costa Rica, El Salvador and Mexico. Several claims raised by the food sovereignty movement are already mandatory through the FNS laws. Nevertheless, the political commitment and the real progress in reducing chronic and acute malnutrition figures do not necessarily have to go hand in hand with the recognition and development of food sovereignty as a political concept, as Brazil clearly exemplifies. Impressive reduction in hunger figures with government´s disdain of food sovereignty
The right to food needs the national human rights institutions
As a human right is at stake when hunger is around, it would seem logical for the right to food to be closely monitored and advocated for by the Human Rights Ombudsmen and Procuradores. However, the real situation has been quite different in the last decade, because these institutions have primarily focused on defending civil and political rights. Situation is swiftly reversing though. In recent times, in parallel with the legal progress on FNS, the Procuradoresof many countries have started to monitor this issue and to elaborate annual reports (i.e. Guatemala, El Salvador, Colombia).
Food Security laws do not contribute much to mobilising anti-hunger funds
Some laws include specific provisions to earmark food security allocations but, apart from Guatemala, these legal provisions are worded in vague terms or, more often the issue is simply not mentioned. Some laws highlight the creation of a specific food security fund (i.e. Nicaragua, Honduras), whose hidden agenda is to raise funds overseas (from international aid). That is why this fund does not seem to be the most suitable option as the eradication of hunger will only be achieved after a heavy and sustained investment coming from the government´s own funds. That means ownership and long-term commitment.
Vivero, J.L. (2011). Hunger for justice in Latin America. The justiciability of social rights in hungry democracies. In: Martín-López, M.A. & J.L. Vivero, eds. New challenges to the Right to Food. Pp: 15-55. CEHAP, Cordoba and Editorial Huygens, Barcelona.
The Defensoría of Human Rights in Guatemala has already issued four Right to Food anual reports, two in El Salvador, and one in Colombia.